J

- S50031

- 20

*Retir ed Senior Judge assigned to the Superior Court. NON

- PRECEDENTIAL DECISION

– SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

KENNETH HOYLE

,

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1362 E DA 2020

Appeal from the Judgment of Sentence Entered October 19, 2018

in the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP

- 51

- CR

- 0008019

- 2017

COMMONWEALTH OF PENNSYLVANIA,

Ap pellee

v.

KENNETH HOYLE,

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1363 EDA 2020

Appeal from the Judgment of Sentence Entered October 19, 2018

in the Court of Common Pl eas of Philadelphia County

Criminal Division at No(s): CP

- 51

- CR

- 0008020

- 2017

BEFORE: BENDER, P.J.E., SHOGAN, J. and STRASSBURGER, J.*

MEMORANDUM BY BENDER

, P. J. E. : FILED APRIL 20, 2021

Kenneth Hoyle (Appellant) appeals nu nc pro tunc from the October 19,

2018 judgments of s entence of t wo consecutive terms of life incarceration,

without the possibility of parole, imposed after a jury convicted him of two

counts of first

- degree murder and one count of possessing an instrument of

crime (PIC)

. Upon review, we affirm.J

- S5003 1

- 20

- 2

-

Appellant’ s charges st em from an incident “in the early morning hours

of July 16, 2017, [when] Appellant shot his [next

- door] neighbor, Robert

De Paul, and D e Paul’s female companion, August Dempsey, after a verbal

altercation.” Commonwealth v. Hoyle

, No. 443 EDA 2019 , unpublished

memora ndum at 1 (Pa. Super. file d March 2 7, 202 0)

. The trial court

thoroughly recounted the evidence presented at trial , as follows

.

Police officer Brian Brent testified that he was at 4670 James

Street for a separate incident when he heard a man’s voice

yelling followed b y a few gunshots from somewhere in the area.

Officer Brent headed in the direction of the gunshots 3 and met

up with Officer Murray, who was also in the area. The officers

encountered Appellant’s wife, who “calmly” directed t he officers

do wn a breezeway, wh er e they discovered two victims, one male

and one female, with gunshot wounds to the head. A picture of

the position of decedents’ bodies, marked Commonwealth Exhibit

C

- 47[,] was shown to the jury. 4 Notably, DePaul’s feet we re not

on Appe llant’s propert y[; ] instead they were on the property of a

third neighbor [, located at 471 3 Jame s Street]

.

3 Appellant live[d] at 4711 James Street. DePaul lived at

4709 James Street. [Appellant shared a breezeway with

another individual wh o lived at 471 3 James Stre et . The

shooting occurred in the breezeway between 4711 and

4713 James Street.]

4 C

- 47 shows DePaul laying [ sic ] facedown diagonally

across the breezeway. De m psey is also laying [ sic ]

facedown and diagonally across the breezeway, her body is

d raped over t ha t of DePau l’s.

Officer Brent testified that Appellant approached him at the

crime scene and “calmly” said [,] “I’m the homeowner... [.] Y’all

took too long to come here [ and ] I shot them.” Officer Brent did

not see any weapons pres ent on the victims.

A video was pl ayed for t he jury that depict[ed] the decedents

walking across the front of their property onto and across

Appellant’s property [,] and then down the breezeway betweenJ

- S5003 1

- 20

- 3

-

Appellant’s house and the 4713 house. The video does n ot show

the actual [sho otings] . The la st camera to c apture the decedents

shows DePaul walk down the breezeway approximately forty

seconds before Dempsey.

Police 911 tapes were also played for the jury. The first call

comes in July 16, 2017, at 1:29 [a.m.

, during which ] Appellant’s

wife was requesting a n officer to 471 1 James Street because her

neighbor from 4709 was drunk and destroying her fence. The

next call comes in [ nine minutes] later at 1:38 [a.m. , during

which ] Appellant’s wife reported that her ne ighbor was exposing

his private parts to her and destroying h er property. When asked

to provide a description of the neighbor she stated that “he is

white” and “my neighbor.” Appellant’s wife further requested

that police come to her property because her n eighbor has a no

trespassing sign, and then said [,] “the cops go tt a come here,

next thi ng he’s gonna pull a gun on us.” When told that police

[would] be sent, she requested that police “knock or ring the

doorbell” when they arrive [d]

.

The next call, at 1: 47 [a.m.], was from Appellant demanding to

know why the po lice ha[d] no t arrived yet. Appell ant stated [,]

“my neighbor is ready to go over the fence and attack us.” He

also told the dispatcher “they better get out here.” The next call,

at 1:52 [a.m.], was from Officer Brent reporting a shooting at

his location.

At 1:53 [a.m. ], 8 Appellant called po lice dispatch and [told] them

to “go out on the front porch.” When asked by the dispatch if he

need [ed] the police o r ambulance Appellant responded, “yea, I

shot both of them.” When asked who he shot, Appellant

responded [,] “t he people th at were attacking us, I t old you to

get here, you didn’t come.” When asked if he shot two people,

Appellant responded [,] “the second round looks like it hit the

other person, I don ’t know.” When asked if he shot males or

females, Appellant respond ed “a male a nd I think a female, I’m

not sure.” Appellant’s voice was very calm throughout the entire

conversation. 9

8 There are three additional calls between the 1:52 [a.m.

call by ] Offi ce r Brent

... and the 1:53 [a.m. call by ]

Appellant [;] they do not c ontain any rel ev ant information.J

- S5003 1

- 20

- 4

- 9 All recordings after 1:56 [a.m.] are communications

between emergency [personnel].

Detective Donald Marano recovered an audiotape, and it was

played for the jury. 10 The audiotape was taken from Appellant’s

property

– Ap pellant had b ee n recording his interactions with

DePaul. The majority of the tape is DePaul and Appellant

arguing, threatening each other, and trading expletives. DePaul

is clearly intoxicat ed and Appellant ha[d] a sarcastic tone and is

taunting DePaul.

1 0 The f ir st speaker on the audiotape is DePaul, th e first

female heard is Dempsey, the other male’s voice is

Appellant [,] and the other female’s voice is Appellant’s

wife.

During the quarre l, Appellant told DePaul to invest in fire

insurance because his hous e is g oi ng to burn down one day.

Shortly thereaft er, DePaul told Appellant that he can choke the

[ shit ] out of him, to which Appellant responded, “any time Bob,

I’m standing right here no w.” Appellant told DePaul that he

“better thank his little [ ass ], she held me back tonight.” [It

appear ed Appellant was referring to Appel l ant ’ s wife holding him

back.] Appellant then told his wife [,] “I wanna take care of this

[ mother fucker ].”

The situa tion escalate [d] twenty three minutes and forty seconds

into the recordi ng wh en DePaul told Appellant “why don’t you

open your gate and let me come up the alleyway.” Appellant

responded, “come on up, come on up.”

Appellant can be heard whispering somethin g, the only audible

words are “stopping him” and “the property.” Appella nt’s w ife

asks Appellant i f he is going to o pen the gate and he responded,

“no, I’m not going to open the gate, I want him caught in the

alleyway.” Appellant then directed his wife to “go get the

spotlight.”

DePaul can be heard saying [,] “alright, here I am Ken

, hello

Ken.” Appellant’s wife then aske d DePaul what he [was] doing on

their property. DePaul and Appellant’s wife yelled at each other

and DePaul said [,] “he asked me to come over

. ” [ DePaul also

said that he was not on Appellant ’ s property, but was on the

n eig hb or ’ s proper ty and neutral property. DePaul continued toJ

- S5003 1

- 20

- 5

-

a sk Appellant ’ s wife where Appellant was, and she told him not

to worry about it. Simultane ously, Dempsey pleaded with DePaul

to leave

. ] Less than two minutes later, [] there is a loud noise,

whi ch wa s the sound of trashcans being knocked over. Ten

seconds later, a gun was fired a total of four time in eight

seconds. [ Between the first shot and the next three shots

, Dempsey yelled, “ Oh my fucking God! What the

... . ” ] After the

gunshots, Appellant can be h eard saying something in the

background, but the words are inaudible. Police responders can

be heard two and a half minutes after the last gunshot was fired.

The recordi ng en d s a minute and a half later.

Detective Marano testified that the breezeway in w hich the

decedents’ bodies were found had a spotlight in it. Detective

Marano also secured a camera from inside Appellant’s residence.

The camera contained pictures taken by Appellant’s wife of the

decedents on the night of the murders. Notably, there ar e seven

pictures o f DePaul standing in the breezeway before he was

shot. In each of the photographs [,] DePaul is standing on the

4713 house’s side of the breezeway. In Comm onwealth Exhibit

61AF, Dempsey and DePaul are standing in the right frame of

the phot og ra ph, and three metal trashcans are upright in the left

frame of the photograph. In Commonwealth Exhibit 6 1AH,

DePaul’s right side of his body is visible in the foregrou nd,

Dempsey can be seen walking away, and [,] in the background [,]

three metal trashcans are l yi ng down across the breezeway.

Police [O] fficer Jacqueline Davis testified that she and her

partner [,] Offic er Gregory Yatcilla [,] processed the crime scene.

App ellant’s backyard was separated from the breezeway, where

the victims’ bodies were found, by a gate

, w hich was five feet,

two inches high, and locked. Officers recovered a bullet fragment

in the breezeway n ext to the victims’ bodies. Additionally, there

wa s blood on the fence post at the end of the breezeway that

divided Appellant’s backyard from the [backyard of the house at]

47 1 3

... . There was no blood on the top of Appellant’s gate or on

the ground in front of his gatew ay.

Inside Appellant’s house, office rs discovered a revolver with four

spent casings and two live rounds still in the cylinder. In the

kitchen, tack ed to the wall, was the criminal [history] of []

DePaul from the First Judicial D istrict [o f Philadelphia]

. Additionally, the dece dent and Appel lant had adjoining

properties, with a fence dividing their respective backyards.J

- S5003 1

- 20

- 6

-

Officer Davis testified that pi ec es of the fence were missing and

the broken parts were laying [ sic ] in Appellant’s backyard.

Dr. Albert Chu, Deputy Medical Examiner, testifi ed that Dempsey

had been shot twice, once in the right side of her forehead and

once in the left buttock. DePaul also s uffered two gunshot

wounds, one to the center of his forehead and one to the left

side of his lower back. The exit wound for the gunshot to

DePaul’s back showed markings that resembled the pattern of

the tank top DePaul was wearing when he died. Dr. Chu

e x plained that when the portion of a body that a bullet exits is

supported, for example on the ground, there are sometimes

markings around the exit wound that correspond to whatever

was pressed against the skin when the victim was shot.

Therefore, the mark i n gs surrounding the exit wound on DePaul’s

[chest] are consistent with DePaul [ ’ s] being on the ground at the

time he was shot in the back. DePaul had injuries to his right

elbow and right hand that were consistent with blunt

- force

trauma. 13 Additionally, a toxicology test was performed on

DePaul, and his blood alcohol content was .262 at the time of his

death.

13 Dr. Chu ag reed with Appell ant’s counsel that these

injuries could have been caused by punching through a

wooden fence.

Police Officer J oh n Cann on, from the Firearms Identification Unit,

testified that the bullet jacket recovered from the crime scene

was an expandi ng type jacket. F urthermore, all of the ballistic

evidence recovered from the crime scene and the decedents’

bodies matched the f irearm recovered from Appellant’s home.

Appellant presented evidence. Nancy Jamison testified that

Appellant is her older b rother, and that A ppellant has a

reputation as being peaceful and law

- abiding.

Police officer Brian Murray testified that, o n July 17, 2017 [,]

around 1:00 [a.m.], approximately one hour prior to the

murders, he was responding to another call in the neighbo rhood

and came i n contact with DePaul. DePaul was intoxicated, yelling

loudly, generally, and then at him in a confrontational ma nner.

Of ficer Murray instructed DePaul to go into his house[.] DePaul

never approached Officer Murray.J

- S5003 1

- 20

- 7

-

Furthermore, Officer M urray had contact with Appellant

immediately after the murders. Appellant was “very calm” and

“very stoic,” Officer Murray call ed him “sho ckingly calm for the

type of situation.” Appellant was cooperative with Officer Murray,

and told Officer Murray [,]

that he had shot bo th individuals that were laying [ sic ] on

his property. He stated that DePaul had been threatening

him [,] and that he gave m ultiple w arnings to leave,

... which [D ePaul had] refused. He stated he was fearing for

his safety and his wife’s due to their age and hea lth, so

that he had shot them. And Appellant said

... that he knew

the female was there but [he] didn’t realize that he had

shot her u ntil he c ame around to approach [the police].

N.T., 10/18/2018[,] at 26

- 33.

Trial Court Opinion (TC O )

, 8/18/2020

, at 2

- 9 (names alt ered ; some

footnotes and record citations omitted ).

Appellant was arrested on July 17, 2017, and charged in two

separate cases (p ertaining to each victim) with the above

- stated

crimes . His cases were consolidated and, at the close of his jury

t rial on Octo ber 19, 2018, he was convicted of each offense with

which he was charged. Appellant was sentenced that same day

to the term of in carcerati on set forth supra

. He filed a timely

post

- sentence motion, which was denied on February 6, 2019.

Hoyle

, No. 443 EDA 2019 , unpublished memora ndum at 1

- 2. Appellant filed

a single notice of appeal from his judgment of sentence, listing both docke t

numbers. Accordingly, this Court quashed Appellant’s notice of appeal as it

violated Commonwealth v. Walker , 185 A. 3d 969 (Pa. 2018)

, and the

mandates of Pa.R.A.P. 341(a). Hoyle

, No. 443 EDA 2019, unpublished

memorandum at 2

- 4

.

On March 27, 2020, Appellant ti mely file d a petition pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541

- 9546 , seeking toJ

- S5003 1

- 20

- 8

-

reins tate his dir ect appeal rights. The PCRA court granted the petition , and

t his nunc pro tunc noti ce of appea l followed. Both Appellant and the trial

court complied with Pa.R.A.P. 1925. 1 On appeal, Appellant raises three

issue s for our review.

I. Was the evide nce sufficient to support Appellant ’ s

convictions for first

- degre [e] murder and [PIC] where the

Co mmonwealt h failed to prove beyond a reasonable doubt

that Appellant d id not justifiably act in self

- defense?

II. Were Appellant ’ s convictions against the cl ear w eight of

the evidence where an audio recording of the events

preceding the shooting, multiple 911 calls, an d evidence

from the crime scene all corroborated Appellant ’ s claim

that he was justified in shooting [] DePaul?

III. Did the trial court err when it rule d that Appellant was not

entitled to present expert testimony to establish his state

of mind at th e time of the shoo ting in support of his

justification defense?

Appellant’s Brief at 5 (capitalization altered )

.

We begin with Appellant ’ s challe nge to the sufficiency of the evidence,

which we consider mindful of the followi ng :

When reviewing the sufficiency of the evid ence

, we must

determine whether the evidence admitted at trial and all

reasonable inferences drawn therefrom, viewed in the light most

favor able to the Commonwealth as verdict winner, were

sufficient to prove every ele ment of the offense beyond a

reasonabl e do ubt. [T]he facts and circumstances established by

the Commonwealth need not preclude e very possibility of

innocence. It is wi thin t he pr ovince of the fact

- finder to

1 We are troubled by A ppellant’s in corporat ing by reference his post

sentence mot ions in his Pa.R.A.P. 192 5(b) statement. However, the trial

court was a ble to ascertain and address the issues raised by Appellant and

, thus

, Appellant’s improper incorporation has not hampered o ur review.J

- S5003 1

- 20

- 9

-

determine the w eight to accord to each w itness’ s testimony and

to believe all, part or none of the evidence

. The Commonwealth

may sustain its burden of proving every element of the crime by

means of wholly circumstan tial e viden ce. As an appellate court,

we may not re

- weigh the evidence and subst itute our judgment

for that of the fact

- finder.

Commonwealth v. Steele

, 234 A.3d 840, 845 ( Pa. Super. 2020) (citations

and quotation marks omitted).

Instantly, Appellant “d oes no t den y that he intentionally shot []

DePaul, but maintains that his convic tions for first

- degree murder and [PIC]

cannot stand because the Commonwealth’s evidence failed to establish that

he was not acting in self

- defense at the time of the shooting. ” Appe llant ’s

Brief at 19.

If a defendant introduces evidence of self

- defense

, t he

Common wealth bears the burden of disproving the self

- defense

claim beyond a reasonable doubt

. The use of force against a

person is justified “when the actor believes that su ch for ce is

immediately necessary for the purpose of protecting himself

against the use o f unlawful force” by the other per son. 18

Pa.C.S.[] § 505(a). A self

- defense claim thus entails three

elements: (1) the defendant reasonably believed that he was in

im minent dang er of death or serious bodily injury and that it was

necessary to use deadly f orce against the victim to prevent suc h

harm; (2) the defendant was free from fault in provoking the

difficulty which culminated in his use of deadly force; and (3) th e

defe ndant did not violate any duty to retreat.

Steele

, 234 A.3d at 846 (som e citatio ns and quotation marks omitted).

The Commonwealth su stains that burden of negation if it proves

any of the following: that the slayer was not free from fault in

provo king o r con tinuing the difficulty which resulted in the

slaying; that the slayer did not reasonably believe that [he] was

in im minent danger of death or great bodily harm, and that it

was necessary to kill in order to save [him]self therefrom; orJ

- S5003 1

- 20

- 10

-

that the slayer viol ated a duty to retreat or avoid the danger.

Commonwealth v. Mouzon

, 53 A.3d 7 38, 740

- 41 ( Pa. 2012) (citations and

q uotation marks omitted).

On appeal, Appellant relies on the 911 calls to establish that he

reasonably was in fear of death or se rious bodil y injury, attempted to de

escalate the confrontation, and did not vio late a du ty to retrea t

, as he “was

on the porch of his home in the middle of the night while [] DePaul was in

the process of scaling his fence to advance upon him.” Appellant’s Brief at

2 1

- 22.

As detailed by the trial court, the jury had the benefit of he aring the

911 calls and the audiotape of the co nfrontation.

The audiotape revealed that Appellant consented to DePaul [ ’ s]

coming onto his property, and then Appellant told his w if e [,] “I

want him caught in the alleyway [,] ” and “go get the spotlight.”

The jury was able to c ompare the audio of Appellant and his wife

taunting a drunken DePaul, with the 911 tapes, from the same

time frame, wherein Appellant and his wife were reporting to

p o lice that they were in fear for their lives. The two recordings

were in direct contradict ion. The evidence presented by the

Co mmonwealth showed that Appellant lured the decedents onto

his property in order to stage the murders as self

- defense; and

tha t Ap p ellant did not reasonably believe that deadly force was

necessary to protect hi mself agai nst death or serious bodily

injury.

Furthermore, the decedents were unarmed, in direct

contradiction to Appellant’s wife’s claim that DePaul was going to

“pull a gu n on [them].” Additionally, the decedent s were shot in

the breezeway, prior to r eaching App ellant’s locked gate. In fact,

all s even photos taken of DePaul by Appellant’s wife show

DePaul standing on the 4713 house’s side of the breezeway. This

evidence is co rroborated by the crime scene photos [,] which

show DePaul laying [ sic ] diagonally across the breezeway, withJ

- S5003 1

- 20

- 11

-

his feet on the 471 3 house side of the breezeway. All of the

photographic evidence refutes Appellant’s claim that DePaul was

climbing the gate

. Las t ly, Appellant shot both the decedents

twice

– the shot to DePaul’s back hit [ting] him after he wa s

already lying on the ground.

TCO at 10

- 11 (names altered).

Viewed in the light most favorable to the Commonwealth, the evidence

was su fficient to dis prove Appellant’s claim of self

- defense. Namely,

Appellant was no t free from fault in cont inuing the confrontati on

, as he

taunted DePaul and invited DePaul to his gate without the intention of going

outside to meet DePaul or opening the gate, but in order to tr ap DeP aul in

the breezeway. B ased upon Appellant’s statements and demean or during

and after the shooting, hi s luring of DePaul to his gate, DePaul’s not

displaying a weapon, and DePaul ’ s not attempting to enter Appellant’s

property

, the jury was free to co nclude that Appell ant was not reasonably in

fear of imminent danger. Moreover

, Appellant could h ave remaine d inside his

home instead of walking outside to shoot DePaul and Dempsey. Accordingly,

Appellant is not entitled to relief on this claim. 2

2 Appellant argues in the last paragraph of this ar gument section that even if

the Commonwealth sustained its burden of d isproving self

- defense, his

conviction of first

- degree murder for shooting Dempsey should be

overturned because the Commonwe alth failed t o prove beyond a reasonable

doubt that Appellant intentionally shot her. A ppellant’s Brief at 23

- 24.

Appellant fai led t o raise this claim in his court

- ordered concise statement

, and thus the trial court was unable to address it . Accordingly, i t is waived.

See Commonwealth v. Bonnett , 239 A.3d 1096, 1106 (Pa. Super

. 2020)

(citati ons omitted) (“ It is well

- established th at an y issue not raised in a Rule

1925(b) statement will be deemed waived for appellate review. Further, an

(Footnote Continued Next Page)J

- S5003 1

- 20

- 12

-

Appe llant next argues that t he verdict was against the weight of the

evidence. Specifically, he contends that “ the fact that he repeatedly called

t he police for help in removing [] DePaul from his premises on the night of

the shooting so undermines confidence in th e jury’s rejec tion of his

justification defense that a new trial is required in the interes ts of justi ce.”

Appellant’s Brief at 25. Ou r standard of revi ew of thi s claim is as follows:

Appellate review of a weight claim is a review of the

exercise of d isc re tion, not of the underlying question of

wheth er the verdict is against the weight of the evidence.

Because the trial judge has had the opportunity to hear

and see the evidence p resented, an appellate court will

give the gravest consideration to the fi ndi ng s and rea sons

advanced by the trial judge whe n reviewing a trial court ’ s

determination that the verdict is against the weight of the

evidence. One of the least assailable reason s for granting

or denying a new trial is the lower court’ s conviction that

th e verdict w as or was not against the weight of the

evidence and that a new trial should be granted in the

interest of justice.

Commonwealth v. Clay

, 64 A.3d 1049, 1055 ( Pa. 2013)

(citations and emphasis omitted).

“[T]he finder of fact while passing up on th e credibi lity of

witnesses and the weight of the evidence produced, is free to

believe all, part or none of the evidence.” Commonwealth v.

Roberts

, 133 A.3d 759, 767 (Pa. Super

. 2016) (citation

omitted). Additionally, the Commonwealth “may sustain its

bu rd en of pro ving every element of the crime beyo nd a

reasonable doubt by means of wholly circumstantial evidence.”

Commonwealth v. Colon

- Plaza

, 136 A.3d 521, 526 (Pa.

Super. 2016) (citation omitted).

(Footnote Continued)

_______________________ appellant’ s concise s tatement must identify the errors with sufficient

specificity for the trial court to id entify and address the issues the appell ant

w ishes to raise on appeal. ”).J

- S5003 1

- 20

- 13

-

Commonwealth v. Bright

, 234 A.3d 744, 749 (Pa. Super. 20 20) (citatio n

format altered).

The trial court rejected Appellant’s weight claim, concluding that “the

jury ’s verdict did not s hock one ’s sense of justice. ” TCO at 12 (quotation

marks omitted). Upon review, we conclude the tria l court did not abuse its

discr etion

. The jury hea rd the 911 calls

, the audio recordings of the

confrontation, and viewed the physical evidence. I n weighing that evidence,

i t was free to re ject Appellant ’ s claim of self

- defense and find, instead, that

Appe llant commit ted the crimes as c harged. Accordin gly, Appellant is not

entitled to relief on this claim.

Finally, we address whether the trial court erred when i t precluded

Appellant from presenting expert testimony to establish his state of mind at

the tim e of the sho oting in suppo rt of his justificati on defense. Appellant’s

Brief at 29. We consider this claim mindful of the following :

[A] dmissibility of expert t estimony is within the sound discretion

of the trial court and will not be reversed absent a cle ar abuse of

discretion. It has long been establ ished that expert opinion

testimony is proper only as an aid to the jury when the subject

matter is distinctly re lated to a science, skill, or occupation

beyond the knowledge or experience of the average layma n.

However, expert testimo ny ma y not be used to bolster the

credibility of witnesses because witness credibility is solely within

the province of the jury.

Co mmonwealth v. Pitts

, 740 A.2d 726, 733 (Pa. S uper. 1999) (citations

and quotation marks omitted)

.J

- S5003 1

- 20

- 14

-

Psychiatri c testimony ha s lon g been held admi ssible to prove a

defend ant’ s subjective belief that he or she is in danger of

imminent death or serious bodily i njury. Commonwealth v.

McCloud

, 455 A.2d 177, 179 ( Pa. Super. 1983). See also

Commonwealth v. St onehouse

, 55 5 A.2d 772 ( Pa

. 198 9)

(plurality) ( holding that trial counsel was ineffective for failing to

present expert testimony on the battered woman syndrome as a

defense to homicide charges); Commonwealth v. Light

, 326

A.2d 288 ( Pa. 1974) (finding that psychiatric testimony was

admi ssible to show w hether defendant acted out of an honest,

bona fide belief that he was in imminent danger at time he killed

victim for purposes of establishing defense of self

- defense);

Commonwealth v. Sheppard

, 648 A.2d 563 ( Pa. Super. 1 994)

(providin g tha t testimony of p aranoid personality disorder was

admissible to show if defendant had a bona fide belief he was in

danger in a hom icide case, although denial of introduction of

such testimony by trial court was not fatal, as p aranoid

pers onality disord er di d not permit cla im of imperfect self

defense to be used to reduce offense from murder to voluntary

manslaughter); Commonwealth v. Miller

, 634 A.2d 614 ( Pa.

Super. 1993) ( en banc ) (holding that evidence of battered

woman synd rome was admi ssible in homi cide trial as probat ive

evidence of defendant’ s state of mind as it relates to a theory of

self

- defense).

Id. at 734 ( citation forma t altered).

By way of background, o n September 13, 2018, Appellant gave notice

of his intent to present expe rt evidence of a me ntal health con dition.

Specifically, Appellant proffered that, immediately prior to and at the time he

shot DePaul and Dempsey, he “was acting under the mental condition of

fear[,] which motivated his action. ” Notice, 9/13/2 018, at 1. On September

18, 2018

, Appellant fil ed a motion in limine to admit expert opinion

testimony from Dr. Steven Samuel, a licensed psychologist, who exam ined

Appellant regarding Appellant’s subjective state of mind as to whether he

had an “honest, b ona fide beli ef that he was in i mminent danger. ”J

- S5003 1

- 20

- 15

-

Memorandum of Law in Support of Motion in Limine

, 9/18/2018, at 3.

According to Dr. Samuel, Appellant’s evaluat ion did “not support the

conclusion that he is diagnosed with a psychological disorder.” Dr. Sam uel’s

Report, 9/16/2018, at 11. Instead, Dr. Sa muel concluded that Appellant shot

DePaul and Dempsey while “under the influence o f extreme emotional

disturbance

. ” Id. at 12. As defined by Dr. Samuel,

[e]xtreme emotional disturbance is a state of mind in r esponse

to an d in the prese nce o f grave provoca tion. It is, objectively, an

unreasonable fear whereas subjectively, i.e.

, in the mind of an

individual experienc ing extreme emotional disturbance, the fear

is reasonable. This was Appellant’s state of mind at the time of

the shootings. He w as agitated, ir ritable and overwhelmed [,] and

so afraid that he an d his wife would be killed by DePaul that h is

judgment and self

- c ontrol w[ere] suddenly and temporarily

overcome.

Id. (names altered).

On September 21, 2018, A ppellant’s mo tion in lim ine f or expert

testimon y regarding Appellant’s state of mind was denied. Th[e

trial] court ruled that the expert’s report contained no d iagnosis;

there were inculpatory statements from Appellant within the

report; and Appellant’s st ate of mind a t the time of th e murders

was an i ssue for the jury to decide.

TCO at 13 (names and capitalization altered; citation o mitted). The trial

court further explained its reasoning for denying the motion as follows.

Dr. Samuel review ed all the audio evidence that was even t u all y

presented in this case and interviewed Appellant himself. The

inter view with Appellant focused on Appellant’s personal history

with DePaul, and contained inadmissible hearsay statements by

Appellan t regarding D ePaul’s bad character.

Th[e tri al] c ourt had previously ruled that the evidence of

DePaul’s bad character for violence would only be admissible if

there was evidence presented that Appellant personally knewJ

- S5003 1

- 20

- 16

-

abo ut it. Additionally, Dr. Samue l ’ s report pl aced a much greater

emphasis on th e tra nscri pts from the police calls made by

Appellant than the audio recording of the actual incident.

Dr. Samuel ultimately concluded that Appellant was suffering

from extreme emotional disturbance at the ti me of the mur ders.

However, Dr. Samuel failed t o cit e ext reme emotional

dist urbance as a recognized disorder in the Diagnostic and

Statistical Manual of Mental Disorders[]. For that reason, [the

trial] court found that Dr. Samuel’s report contained no

diag nosis. Becaus e Dr. Samuel’s expert opinion did not c ontai n a

diagnosis, and Dr. Samuel’s expert report was otherwise

inadmissi ble, th[e trial] court did not permit Dr. Samuel to

testify regarding Appellant’s state of mind during the murder.

Id. at 13

- 14 ( names and cap italization altered ; footnote omit ted ).

App ellant relies on Light to argue that the testimony was admissible

to show the subjective element of his state of mind at the time of the

shooting in support of his theory of self

- defense. App ellant’s Brie f at 32.

Appellant is correct that psychiatric testi mony is generally admissible to

prove a defendant’s subjective state of mind i n support of a justification

defense

. However, Dr. Samuel’s report did not include a n opinion about how

Appellant ’s state of m ind was affected by any mental dis order that Ap pella nt

may h ave been suffering from in order to explain why Appellant subjectively

believed he was in imminent dan ge r at the time of the shootings. Cf.

, e.g.

,

Pitts

, 740 A.2d 726 ( c onsidering rep ort that Pitt s suffered from post

traumatic str ess syndrome) ; She ppard

, 648 A.2d 563 ( cons idering report

that Sheppard suffered from paranoid personality disorder ); Miller

, 634

A.2d 614 (considering report that Miller su ffered from battered woman

syndrome )

. Rather, Dr. Samuel evaluated the evidence tha t would beJ

- S5003 1

- 20

- 17

-

pr esent ed at trial, as well as some evidence provided by Appellant that the

trial court had ruled inadmissible, and concluded that Appellant was

subjectively afraid, tho ugh his fear was unreasonable

. As such

, it would not

aid the jury regarding a subject mat ter b eyond the knowledge or experience

of the average layperson

, and it was not admissible as expert testimony

.

See Pitts

, 740 A.2d at 733. Withou t an underlying condition for Dr. Samuel

to explain to the jury as to why Appellant’s fear was subjec tively re asona ble,

it was solely within the jury’s province to weigh the evidence and determine

whether Appellant subjectively believed he was in imminent danger.

Moreover, the proffered testimony was inadmiss ible expert t estimony

, as it

bolstered the credi bility o f App ellant’s statements to police that he was in

fear for his and his wife’s lives immediately prior to and during the shooting.

Id. Accordingly, we c onclude that the trial court did not abuse its dis cretion

in ex cluding Dr. Samuel’s testimony.

Judgment of s entence affirmed.

Judge Strassburger did not participate in the consideration or decision of this

case.J

- S5003 1

- 20

- 18

-

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/20/2021